EFF Supports Senator Bingaman's Immunity Amendment: Congress Should Know What It is Immunizing

The schedule for the Senate's return on July 8 allows for three amendments to be introduced to the FISA Amendments Act, which in its current form would grant immunity from the law to phone companies who engaged in illegal spying. One amendment, from Senators Dodd and Leahy, would strip immunity from the bill altogether. A second, from Senator Specter [PDF], would would allow the court to deny immunity if it found that the government's surveillance activities were unconstitutional.

The current version of the Senate bill calls for an investigation into the President's warrantless wiretapping program by the Inspectors General of the Department of Justice and other US government intelligence agencies. The IG investigation, while no substitute for an independent court ruling, is likely to uncover some of the details of the program that the White House has been trying to suppress.

Unfortunately, the current bill puts the cart before the horse, by granting immunity from the law to phone companies before the investigation has even begun. If the Senate is resolved to pass legislation granting immunity, it it ought to at least know what conduct it's immunizing — It should give itself an opportunity to revisit the issue after it has the IG Report in hand.

That's where the Bingaman amendment comes in.

The Bingaman amendment would prevent Congress from granting immunity in the dark, as described in the press yesterday, by "stay[ing] pending cases against the telecoms and delay[ing] the effective date of any immunity provisions until 90 days after Congress received a report from the inspectors general of the intelligence agencies on the warrantless surveillance program". By placing a temporary hold on immunity and on the litigation until 90 days after the IG Report is submitted to Congress, the simple amendment would give Congress and the American people an opportunity to revisit the issue of telco immunity next year, in light of the audit's findings.

EFF has signed an open letter in support of the Bingaman Amendment [PDF] along with the ACLU and eleven other civil liberties organizations, and urges all members of the Senate who care about civil liberties and the rule of law to champion it. The amendment wouldn't cure all of the problems with the bill, and is no replacement for a strong no vote on final passage, but at this moment it looks to be the last best shot at saving the litigation against the telcos from an early death.

We especially hope that Senator Obama recognizes how important his leadership could be on this amendment.

It is an immeasurable tragedy that as July 4th approaches, Congress appears poised to pass a bill that would betray the spirit of 1776 by radically expanding the president's spying powers and granting immunity to the companies that colluded in his illegal surveillance program.

We hope that all Americans who care about this issue will celebrate the Fourth of July this year by demanding that their Senators uphold the rule of law by supporting the immunity amendments and, most importantly, voting NO on final passage of the FISA Amendments Act of 2008.

Updated June 30 2:40pm PT: An earlier version of this post mistakenly identified the amendment's cosponsor as Senator Carter. The actual cosponsor is Senator Casey.

Related Updates

Last week, FBI Director Christopher Wray faced questions from the House Judiciary Committee about how his department is implementing one of the government’s most powerful surveillance tools. Despite repeated bipartisan requests, Director Wray refused to tell the Members of the Committee how many Americans have been impacted by Section 702...

A bill to extend one of the NSA’s most powerful surveillance tools, and further peel back American civil liberties, was approved today by the House Permanent Select Committee on Intelligence in a strict party line vote (12-8), with Republican members voting in the majority. The committee and the public had...

Thrown last-minute into a torrent of competing legislation, a new bill meant to expand the NSA’s broad surveillance powers is the most recent threat to American privacy. It increases who is subject to surveillance, allows warrantless search of American communications, expands how collected data can be used, and treats constitutional...

The First Amendment is too often overlooked in discussions of the National Security Agency’s vast surveillance authorities. But as Congress considers whether to reauthorize Section 702 of FISA this winter, we must remember that it’s not just our Fourth Amendment rights to privacy that are in the crosshairs, but...

Take the language of one NSA surveillance reauthorization bill and add a few strong reform proposals from another, and what do you get? A bill that helps protect Americans from the warrantless search of the content of their emails, text messages, and digital communications. On November 17, Senators Patrick Leahy...

The FISA Amendments Reauthorization Act of 2017—legislation meant to extend government surveillance powers—squanders several opportunities for meaningful reform and, astonishingly, manages to push civil liberties backwards. The bill is a gift to the intelligence community, restricting surveillance reforms, not surveillance itself. The bill (S. 2010) was introduced October 25...

The House Judiciary Committee on Wednesday approved the USA Liberty Act, a surveillance reform package introduced last month by House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI). The bill is seen by many as the best option for reauthorizing and reforming Section 702 of the...

As the deadline for renewing and reforming key portions of the NSA’s spying apparatus looms less than two months away, two of the most important members of the House Intelligence Committee have stayed remarkably quiet in the conversation. Congress just introduced multiple bills to extend Section 702 of the...

Two clocks are ticking for US tech companies in the power centers of the modern world. In Washington, lawmakers are working to reform FISA Section 702 before it expires on December 31st, 2017. Section 702 is the main legal basis for US mass surveillance, including the programs and techniques...

As we detailed yesterday, a bill introduced this week by Sens. Ron Wyden and Rand Paul would represent the most comprehensive reform so far of Section 702, the law that authorizes the government to engage in mass warrantless surveillance of the Internet. EFF supports the bill, known as the...